Intermediary Liability

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Whether and when communications platforms like Google, Twitter and Facebook are liable for their users’ online activities is one of the key factors that affects innovation and free speech. Most creative expression today takes place over communications networks owned by private companies. Governments around the world increasingly press intermediaries to block their users’ undesirable online content in order to suppress dissent, hate speech, privacy violations and the like. One form of pressure is to make communications intermediaries legally responsible for what their users do and say. Liability regimes that put platform companies at legal risk for users’ online activity are a form of censorship-by-proxy, and thereby imperil both free expression and innovation, even as governments seek to resolve very real policy problems.

In the United States, the core doctrines of section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act have allowed these online intermediary platforms user generated content to flourish. But, immunities and safe harbors for intermediaries are under threat in the U.S. and globally as governments seek to deputize intermediaries to assist in law enforcement.

To contribute to this important policy debate, CIS studies international approaches to intermediary obligations concerning users’ copyright infringement, defamation, hate speech or other vicarious liabilities, immunities, or safe harbors; publishes a repository of information on international liability regimes and works with global platforms and free expression groups to advocate for policies that will protect innovation, freedom of expression, privacy and other user rights.

Giancarlo F. Frosio is a Non-Residential Fellow at the Center for Internet and Society at Stanford Law School. Previously he was the Intermediary Liabilty fellow with Stanford CIS. Giancarlo is a qualified attorney with a doctoral degree (S.J.D.) in intellectual property law from Duke University Law School. Additionally, he holds an LL.M. with emphasis in intellectual property law from Duke Law School, an LL.M. in information technology and telecommunications law from Strathclyde University in Glasgow, and a law degree from Università Cattolica in Milan.

Luiz Fernando Marrey Moncau is and Affiliate Scholar at the Stanford Center for Internet and Society. He was previously the Intermediary Liability Fellow at Stanford CIS. He was also head of the Center for Technology and Society (CTS) at the law school of the Getulio Vargas Foundation in Rio de Janeiro (FGV DIREITO RIO), where he coordinated and conducted research on freedom of expression, intellectual property, Internet regulation, consumer rights and telecommunications regulation.

Jennifer Granick fights for civil liberties in an age of massive surveillance and powerful digital technology. As the new surveillance and cybersecurity counsel with the ACLU's Speech, Privacy and Technology Project, she litigates, speaks, and writes about privacy, security, technology, and constitutional rights.

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In a recent ruling, the Spanish Audiencia Nacional – the high court that referred the Google Spain case to the Court of Justice of the European Union (CJEU) – has somehow expressed opposition against imposing global delisting obligations on search engines.

Hollywood studios, led by Universal, have sued TickBox TV in federal district court in California, bringing their campaign against set-top box (STB) piracy stateside after a big win earlier this year in the EU. Last spring, the Dutch film and recording industry trade association BREIN prevailed in copyright litigation against the distributor of a STB called the Filmspeler. The CJEU held that the Filmspeler’s distributor, Wullems, directly infringed the plaintiffs’ copyrights—specifically, their right of communication to the public—by selling STBs loaded with software add-ons that provided easy access to infringing programming online. (I blogged about the Filmspeler case here.)

As I’ve been writing about networked information technologies as “tools,” it’s worth reiterating that metaphors of space are not entirely without value, including in areas of the law that derive from laws relating to real property. Having noted in multiple prior posts the weaknesses of spatial metaphors, here I discuss some of their common applications in ways that are productive. There are two particular applications of the physical space metaphor to online platforms and services that are interesting:

As you might have noticed, there is a lot of activism on the copyright/intermediary liability side in Europe at the moment. Hence, I'm here announcing another opinion that I have co-drafted with an amazing team of scholars, including Martin Senftleben (lead author), Christina Angelopoulos, Valentina Moscon, Miquel Peguera and Ole Rognstad, and has been endorsed by more than sixty other acadamics so far:

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Tensions between national law and the Internet’s global architecture have existed since the network’s earliest days. They took on new urgency in recent years, with developments like French regulators’ efforts to globally enforce “Right to Be Forgotten” laws. New cases, technologies, and platform responses seem to come along every few months. Expert-level discussion of these issues is dynamic and fast-moving -- but the written literature is only starting to catch up.

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum.

SESTA, the Stop Enabling Sex Traffickers Act, would overhaul US intermediary liability law and potentially expose hundreds of thousands of US platforms to new civil and criminal claims. Its exact legal consequences are uncertain, because the bill is so badly drafted that no one can agree on its meaning. But SESTA’s confusing language and poor policy choices, combined with platforms’ natural incentive to avoid legal risk, make its likely practical consequences all too clear.

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures—such as content id technologies—to prevent copyright infringement on online platforms.

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"Policy experts also question how the bill would actually work. Daphne Keller of the Stanford Center for Internet and Society pointed to the challenges of determining whether an ad buyer is a foreign entity, particularly if buyers rely on outside vendors to purchase ads.

“Nobody knows how to figure out who counts as Russian,” she said. “It seems extremely easy to hide your identity.”"

"Daphne Keller of the Stanford Center for Internet and Society says that the new law could push some platforms and publishers to crack down on a wide variety of speech, to avoid the threat of lawsuits. It would give them “a reason to err on the side of removing internet users’ speech in response to any controversy,” she says, “and in response to false or mistaken allegations, which are often levied against online speech.”"

"The opposing view, held by advocates for victims of crime or harassment online, is that giving tech companies immunity removes any incentive they have to conduct due diligence. Danielle Citron, a professor at the University of Maryland Francis King Carey School of Law who also serves on Twitter’s Trust and Safety Council, co-authored a paper this summer entitled “The Internet Will Not Break," which called for making the law’s immunity less sweeping.

"“When platforms don’t know what to do, the legally over-cautious response is to go way overboard on taking things down just in case they’re illegal,” Daphne Keller, Director of Intermediary Liability at Stanford University’s Center for Internet and Society, told BuzzFeed News. “My worst case scenario legislation would be some vague obligation for platforms to make sure that users don’t do bad things.”"

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Twenty years ago, the US Supreme Court’s decision in Reno v. ACLU established the framework for internet free speech and liability that remains in place today. This conference will consider the continuing viability of the Reno vision in the face of multiplying concerns about sex trafficking online, terrorist content, election interference, and other forms of contested content.

The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School and a part of Law, Science and Technology Program at Stanford Law School. CIS brings together scholars, academics, legislators, students, programmers, security researchers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, innovation, privacy, public commons, diversity, and scientific inquiry.

WHAT: “Separating fact from fantasy: Is fake news undermining the truth?” The proliferation of fake news and what can be done about it comes under scrutiny by a multidisciplinary panel of experts assembled at the University of California, Berkeley.

After a deluge of criticism and widespread expression of concern, Facebook announced steps to partially address the threat of never-ending information wars.

Over two years have passed since the Court of Justice of the European Union ruled, in the Google Spain case, that the search engine must “de-list” certain search results on request in order to honor the requesters’ data protection rights.

President Trump has blocked Twitter followers on his personal feed--raising questions, and a lawsuit, about first amendment rights on social media. An expert on free speech in the online world says the case has wide implications for public figures on all forms of social media.

""Half the time it's, 'Oh no, Facebook didn't take something down, and we think that's terrible; they should have taken it down,' " says Daphne Keller, a law professor at Stanford University. "And the other half of the time is, 'Oh no! Facebook took something down and we wish they hadn't.' "

Rebecca Tushnet, professor at Georgetown university law school, and Andrea Matwyshyn, Professor of Law at Northeastern University, discuss one lawsuit against Google, Facebook and Twitter, which was brought by the families of the victims of the Pulse Nightclub shooting in Miami, and another suit against Google for unlawfully censoring its workers. They speak with June Grasso on Bloomberg Radio’s "Bloomberg Law."